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MUTUAL NONDISCLOSURE AGREEMENT1.1 Exchanges of Information, Intellectual Property, Work Product,

Information, via Verbal, Written, Electronic, Social Media, Audio, Network, Email, Blogs, or Press Releases.

This Mutual Nondisclosure Agreement is made as of Tuesday, February 22, 2011(the “Effective Date”) between “Discloser” (“Tier 1, SMARTvt, SMART Holdings USA, Job Club”), with an office at 104 Country Club – East, South Burlington 05403 and:

Recipients: Agents, Employees, Consultants, Trusted Advisors, Board Members, Job Club Participants, Corporate Officers, NDA Approved Reviewers of Materials.

“Confidential Information” as used in this Agreement shall mean any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of each of the parties, and includes, without limitation, each party’s respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information.

“Confidential Information” also includes proprietary or confidential information of any third party who may disclose such information to either party in the course of the other party’s business.

Any information disclosed by the disclosing party (“Discloser”) will be considered Confidential Information of Discloser by the receiving party (“Recipient”), only if such information (a) if provided as information fixed in a tangible medium of expression, is conspicuously designated as “Confidential” or “Proprietary”, or (b) if provided orally, is identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure.

In consideration of the parties’ discussions and any access of Recipient to Confidential Information of Discloser, each party hereby agrees as follows:

1. Nondisclosure and Nonuse Obligation. Each of the parties, as Recipient, agrees that such Recipient (i) will not use, disseminate, or in any way disclose any Confidential Information of the other party, as Discloser, to any person, firm or business, except to the extent necessary for internal evaluations in connection with negotiations, discussions, and consultations with personnel or authorized representatives of Discloser and then only if such person, firm or business is not a competitor of Discloser, and for any other purpose Discloser may hereafter authorize in writing, (ii) will not divulge any Confidential Information or any information derived therefrom to any third person, (iii) will not, directly or indirectly, remove or export from the United States or re-export any Confidential Information or any direct product thereof except in compliance with and with all licenses and approvals required under applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce, (iv) will

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not copy any Confidential Information, or “unlock,” reverse engineer, decompile, disassemble or otherwise translate any object code portion of the Confidential Information to a human-perceivable form nor permit any person or entity under its employ or control to do so or otherwise seek to discover source code of any Confidential Information and (v) will not remove, alter, cover, or obscure any confidentiality, trade secret, proprietary, or copyright notices, trademarks, patent, or other identifying marks or designs from any Confidential Information. Furthermore, the existence of any business negotiations, discussions, consultations or agreements in progress between the parties shall not be released to any form of public media without written approval of both parties. Each of the parties, as Recipient, agrees that Recipient shall treat all Confidential Information of the other party, as Discloser, with the same degree of care as Recipient accords to Recipient’s own Confidential Information, but in no case less than reasonable care. Each of the parties, as Recipient, which is not an individual agrees that such Recipient shall disclose Confidential Information of the other party, as Discloser, only to those of Recipient’s employees who need to know such information, and Recipient certifies that Recipient’s employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information of Discloser, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Recipient under this Agreement. Each of the parties, as Recipient, shall immediately give notice to the other party, as Discloser, of any unauthorized use or disclosure of Discloser’s Confidential Information. Each of the parties, as Recipient, agrees to assist the other party, as Discloser, in remedying any such unauthorized use or disclosure of Discloser’s Confidential Information.

2. Exclusions from Nondisclosure and Nonuse Obligations. The obligations under Paragraph 1 (“Nondisclosure and Nonuse Obligations”) of each of the parties, as Recipient, with respect to any portion of the Confidential Information of the other party, as Discloser, shall not apply to such portion that Recipient can document: (a) was in the public domain at or subsequent to the time such portion was communicated to Recipient by Discloser through no fault of Recipient, (b) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Recipient by Discloser, (c) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser, or (d) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. A disclosure by each of the parties, as Recipient, of Confidential Information of the other party, as Discloser, either (a) in response to a valid order by a court or other governmental body, (b) otherwise required by law, or (c) necessary to establish in a court of law the rights of either party under this Agreement, shall not be considered to be a breach of this Agreement by Recipient or a waiver of confidentiality for other purposes; provided, however, Recipient shall provide prompt prior written notice thereof to Discloser to enable Discloser to seek a protective order or otherwise prevent such disclosure.

3. Ownership and Return of Confidential Information and Other Materials. All Confidential Information of each of the parties, as Discloser, and any Derivatives thereof whether created by Discloser or the other party, as Recipient, shall remain the property of Discloser, and no license or other rights to Discloser’s Confidential Information or Derivatives is granted or implied


hereby. For purposes of this Agreement, “Derivatives” shall mean: (a) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected under copyright, patent and/or trade secret laws. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs, lists and all other tangible media of expression) furnished by each of the parties, as Discloser, to the other party, as Recipient, and which are designated in writing to be the property of Discloser, shall remain the property of Discloser. At Discloser’s request and no later than three (3) days after such request, Recipient shall promptly destroy or deliver to Discloser, at Discloser’s option, (a) all materials furnished to Recipient by Discloser, (b) all tangible media of expression in Recipient’s possession or control to the extent that such tangible media incorporate any of Discloser’s Confidential Information, and (c) written certification of Recipient’s compliance with Recipient’s obligations under this sentence.

4. Independent Development. Each of the parties, as Discloser, understands that the other party, as Recipient, may currently or in the future be developing information internally, or receiving information from other parties that may be similar to Discloser’s Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or inference that Recipient will not develop products or services, or have products or services developed for Recipient, that, without violation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.

5. No Required Disclosures. Recipient understands that nothing herein (i) requires the disclosure of any Confidential Information of Discloser, which shall be disclosed if at all solely at the option of Discloser (in particular, but without limitation, any disclosure is subject to compliance with export control laws and regulations), or (ii) requires Discloser to proceed with any proposed transaction or relationship.

6. No Warranty. All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding such Confidential Information’s accuracy or performance. No license, express or implied, is granted by either party to the other as a result of the disclosure by one to the other of Confidential Information.

7. Term. This Agreement shall govern all communications between the parties that are made during the period from the Effective Date to the third anniversary of the Effective Date or such earlier date on which either party receives from the other written notice that subsequent communications shall not be so governed, provided, however, that each party’s obligations under Paragraph 1 (“Nondisclosure and Nonuse Obligations”) with respect to Confidential Information of the other party which such party has previously received shall continue for a period of five (5) years from disclosure unless terminated pursuant to Paragraph 2 (“Exclusions from Nondisclosure and Nonuse Obligations”).


8. Export Compliance. Recipient agrees to comply with all applicable government regulations relating to the direct or indirect export or re-export of any Confidential Information. Unless prior authorization is obtained from the Bureau of Industry and Security, Recipient will not (1) knowingly re-export the technical data received from Discloser to any destination, or (2) export the direct product of the technical data, directly or indirectly, to a country listed in Country Group D:1 or E:2 in Supplement No. 1 to Part 740 of the Export Administration Regulations (Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba, Estonia, Georgia, Iran, Iraq, Kazakhstan, Kyrgyzstan, Laos, Latvia, Libya, Lithuania, Macau, Moldova, Mongolia, North Korea, People's Republic of China, Romania, Russia, Sudan, Syria, the Taliban controlled portion of Afghanistan, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, or Vietnam), as such list may be amended from time to time.

9. Government Matters. Recipient shall not disclose Confidential Information to any federal agency or other governmental entity (collectively, “Government") without Discloser's prior written authorization. In the event that Recipient does disclose Confidential Information to the Government, it shall take all steps necessary to ensure that the Government acquires no more than 'limited rights' or 'restricted rights' (as those terms are defined in 48 C.F.R. 52.227-14(a)) in Discloser's Confidential Information.

10. No Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, each party reserves the right to assign this Agreement to any current or future parent or affiliate or successor.

11. Notices. Any notices required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by telecopy or facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such other address as either party may specify in writing.

12. Remedies. Recipient acknowledges and agrees that due to the unique nature of Discloser’s Confidential Information, there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Recipient or third parties to unfairly compete with Discloser resulting in irreparable harm to Discloser, and therefore, that upon any such breach or any threat thereof, Discloser shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law and to be indemnified by Recipient from any loss or harm, including, without limitation, attorneys’ fees, in connection with any breach or enforcement of Recipient’s obligations hereunder or the unauthorized use or release of any Confidential Information.

Recipient will notify Discloser in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware. In the event that any of the provisions


of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by the law of the State of Vermont without regard to the conflicts of law provisions thereof. Each party submits to the exclusive jurisdiction of the courts of the State of Vermont. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.


In witness whereof, the parties have executed this Mutual Nondisclosure Agreement as of the day and year first set forth above.

Discloser: Tier 1, SMARTvt, SMART Holdings USA, Job Club

By:

Name: Mark E. Renkert, Mcsl

Title: Chairman of the Board

Recipient: Employee, Consultant, Trusted Advisor, Board Member, Information Recipient, Job Club Participant, Executive Officer or Agents Thereof…

By:

Name:

Title:


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